第二十三次活动 （http://golori.org/bjforum/index.htm）

形式：学术报告
时间：2011年11月5日(星期六） 10:00 -- 12:00
地点：清华大学新斋346

报告人: 熊明辉 教授（中山大学）
题目: Logics for Legal Argumentation
摘要: This topic about logics for legal argument stems from Protagoras,
who is the first sophist in Ancient Greece and presented the paradox
of the court. In Aristotle's logical works Organon, what his treatise
On Sophistical Refutations discussed is how to refute sophist's
argumentation and to discover their fallacies. In 1588 Abraham Fraunce
published the Lawier Logike exemplifying the praecepts Logike by the
practise of the common Lawe. In his poem, he said, "I see no reason,
why that Law and Logike should not bee. The nearest and the dearest
freends, and therefore best agree....... I sought for Logike in our Law,
and found it as I thought."

As a symbol of legal realism, Jr. Oliver Wendell Holmes said in 1881,
"The life of the law has not been logic; it has been experience".
Therefore, most scholars have wrongly thought that Holmes tried to
reject the important role of logic in the law up to now. However, it
is not what Holmes really wanted to say. On the contrary, in 1897
Holmes stressed that the training of lawyers was a training in logic
and the language of judicial decision was mainly the language of
logic. Interestingly three book reviews were published on the Columbia
Law Review's 31st issue of 1931after Jerome Frank's book Law and the
Modern Mind was printed. Karl Llewellyn thought Frank's idea was keen,
cogent and well-integrated; therefore, logic lost its function in the
law domain, while Mortimer J. Alder claimed that legal certainty need
to be maintained by formal logic and judicial decision was the outcome
of deductive logic. But Walter Wheeler Cook thought Frank hadn't
actually denied the role of formal logic in the law but was trying to
show how lawyers had misconceived and misused formal logic.

The systematic study of logics for legal argument started from the
middle period in last century, i.e., after Ulrich Klug published his
book Juristische Logik in 1951 and Lee Loevinger issued his paper 'An
Introduction to Legal Logic'. Since then, logics for legal
argumentation have been going forward along two paths - formal and
informal. The former is based on formal logic while the latter's basis
is informal logic or argumentation theory. Absolutely, both Klug and
Loevinger regarded legal logic as an applied modern logic while as an
applied traditional logic before their theories. In 1958 Cha?m
Perelman et al and Stephen Toulmin published respectively Traité de
l'argumentation, la Nouvelle Rhétorique and The Uses of Argument. It
is they that opened up the path to study logics for legal
argumentation from a perspective of non-formal logic. Although some
scholars who are walking on the two roads seem to understand each
other sometimes, we think it is possible to integrate the two lines.
In this talk, we will show this kind of possibility.